Ajit Singh vs Delhi Development Authority And Ors

S.N.Terdal, J

We have heard Mr.R.A.Sharma, counsel for applicant and Mrs. Sriparna Chatterjee, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

"(a). Direct the respondents to produce the records of the case for perusal of this Hon'ble Tribunal.

(b) Quash and set aside Order dt. 18.12.2014 (Annex.A-1) passed by the Revisional Authority.

(c ) Quash and set aside Order dt. 13.05.2013 (Annex.A-2) Passed by the Appellate Authority.

(d) Quash and set aside Order dt. 14.09.2011 (Annex.A-3) passed by the Disciplinary Authority.

(e) Quash the charge sheet dt.12.08.2008 (Annex.A-4).

(f) Direct the respondents to release all consequential benefits of service.

(g) Allow costs in favour of the applicant and against the respondents."

The relevant facts of the case are that a departmental enquiry was initiated against the applicant under Regulation 25 of the DDA Conduct, Disciplinary and Appeal Regulations 1999, for the misconduct namely recommending payment for items of RCC members such as slabs, columns, beams, balconies etc. without exercising effective supervision resulting in poor quality of RCC works etc. The Article of charges is as follows:-

"Article-1

That the said Sh. Ajit Singh, A.E. has recommended payment for the item of RCC work such as slabs, columns, beams, balconies, sun shades etc. He failed to exercise effective supervision of the work which resulted in execution of poor quality of RCC works. Roof slabs of Flat No. 45 & 60 paid vide M.B.No. Page are being dismantled and relaid at an extra cost causing financial loss to the Deptt. As per the T.S. sanctioned by C.E. (Rohini) for the special repair an amount of Rs. 9.15 lacs (approximately) is likely to be spent for rectification of RCC members, which is an anticipated financial loss to the Deptt.

Article-II

As per the investigation report of M/s Engineering and Development Consultant, the chloride contents is beyond the threshold limit of 0.175% by mass of concrete and as per the report duly endorsed by CE/QC vide letter dated 12.2.07 it is perhaps chloride coming out from the ingredients of concrete such as water and sand that appears to be the main source of corrosion aided by carbonation which resulted in execution of sub-standard work.

That the said Shri Ajit Singh, A.E. by his above acts failed to maintain absolute devotion to duty and behaved in a manner unbecoming of an employee of the Authority, thereby violating sub-rule 1 (i) and 1 (iii) of Regulation 4 of DDA Conduct, Disciplinary and Appeal Regulations, 1999."

Along with the article of charges, statement of imputations of misconduct, list of witnesses and list of documents were served on the applicant. As the applicant did not admit the charges, an Inquiry Officer was appointed. The Inquiry Officer following the relevant procedural rules for holding departmental enquiry and after observing principles of natural justice, examined the witnesses and perusing the documents produced in the departmental enquiry and then after discussing the evidence before him came to the conclusion that article of charges framed against the applicant was partly proved vide order dated 29.07.2009. The disciplinary authority after perusing the inquiry report issued a disagreement note. The applicant was given an opportunity to file representation against the inquiry report and the disagreement note. After considering the entire material in the departmental enquiry and considering the representation against the inquiry report and disagreement note, the disciplinary authority imposed a penalty of reduction of pay by two stages for a period of one year vide the impugned order dated 14.09.2011. The appellate authority vide his order dated 13.05.2013 dismissed the appeal of the applicant after recording the reasons. The Revisional Authority vide his order dated 18.12.2014 dismissed the revision of the applicant after perusing the entire record and the order passed by the disciplinary and appellate authority and after considering the revision petition.

The counsel for the applicant vehemently contended that during the period 9.10.1991 to 6.02.1997 the applicant had worked only for a period of five months as Assistant Engineer and that the charge sheet was issued in 2008 for the alleged incident that took place between 1991 to 1997. As such there is delay of 11 years in initiating the departmental enquiry, in view of the law laid down by the Hon'ble Supreme Court in the case of P.V.Mahadevan Vs. M.D. Tamil Nadu Housing Board, JT 2005 (7) SC 417, the impugned order requires to be set aside. Counsel for the applicant further submitted that there is no clear cut imputation regarding the misconduct and the charges are vague and, therefore, charge sheet itself requires to be set aside in view of the law laid down by the Hon'ble Supreme Court in the cases of Surath Chandra Chakrabarty Vs. State of West Bengal, 1970 (3) SCC 548) and Swai Singh Vs. State of Rajasthan (1986) 3 SCC 454). He further submitted that the important material which was considered and heavily relied upon by the inquiry officer is the investigation report of M/s Development and Engineers Consultant, but however, the author of the said report has not been examined as such his case is prejudice. In support of this contention, the counsel for the applicant relied upon the law laid down by the Hon'ble Supreme Court and Hon'ble Andhra Pradesh High Court in the following cases:

(1). Narain and Ors. Vs.State of Punjab, AIR 1959 SC 484.

(2) Thotapalli Radhakrishna Murthy Vs. The Divisional Manager, United India Insurance Co. Ltd. Guntur 1982 Lab IC 1745. Andhra Pradesh High Court judgment.

(3) Hardwari Lal Vs. State of U.P & Ors ( 1999) 8 SCC 582)

The counsel for the applicant further submitted that it is a case of no evidence and the orders are not based on reasons. In support of the same he has relied upon the judgment of Hon'ble Supreme Court in the case of Roop Singh Negi Vs. Punjab National Bank & Ors 2009(2) SCC 570.

We have perused the article of charges and the inquiry report. The charges are not vague. The Inquiry Officer has examined the witnesses and he has given adequate opportunity to applicant to cross-examine. He has also given adequate opportunity to applicant submit his defence. Though the author of the said investigation report is not examined, but however in view of the detailed reasoning given by the inquiry officer in our opinion the applicant is not prejudiced thereby. Though the applicant may have worked only for five months yet he cannot absolve himself of the responsibility in supervising the work assigned to him in those five months under the relevant provisions. Though there is delay in initiating the departmental enquiry but, however, in view of the facts and circumstances of the case that because of his misconduct it has been established that some of the flats have to be dismantled and re-laid at an extra cost as the concrete work was defective because of execution of sub-standard work. We have also perused the impugned orders of the disciplinary authority, appellate authority and revisional authority. All the orders are reasoned and speaking order.

The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:

(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-

"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-

"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.

In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."

Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon'ble Supreme Court observed as under:-

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".

Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-

"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence.

The High Court can only see whether:

a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence."

In view of the facts and circumstances of the case and in view of the law laid down by the Hon'ble Supreme Court referred to above and in view of the fact that no violation of procedural rules was brought to our notice by the counsel for applicant, the OA requires to be dismissed.

Accordingly, OA is dismissed. No order as to costs.